SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0163
| TIMOTHY WOODS | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 25 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 293 |
| JUDGMENT APPEALED FROM: | DPP v Woods (Unreported, County Court of Victoria, Judge Murphy, 20 July 2016) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary (3y 9m) – Common law assault (x2) (6m (x2)) – Making threats to kill (x2) (8m (x2)) – Contravention of a family violence order (x2) (2m and 6m) – Attempt to pervert the course of justice (10m) – Total effective sentence 5y – Non-parole period 3y – Leave to appeal granted on proposed ground 4 concerning ‘double punishment’ otherwise leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Balmer & Associates |
| For the Respondent | No appearance | Mr John Cain, Solicitor for Public Prosecutions |
WHELAN JA:
On 10 May 2016 the applicant was found guilty in the County Court after a trial of one offence of aggravated burglary, two offences of common law assault, two offences of making threats to kill, and two offences of contravening a family violence intervention order. He had already pleaded guilty, on a separate indictment, to one offence of attempting to pervert the course of justice. He was acquitted of further charges arising out of the same incident, being one charge of common law assault, one charge of making a threat to kill, a charge of indecent assault, and a charge of persistent contravention of a family violence intervention order (which was a more serious alternative to the two counts of contravention of which he was convicted).
A plea hearing was conducted on 11 May 2016 and 15 July 2016. On 20 July 2016 the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation Trial indictment: F10491221 1. Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 3 years’ 9 months Base 2 Common law assault [Contrary to Common Law] 5 years [Crimes Act 1958 s 320] 6 months 2 months 3. Making threats to kill [Crimes Act 1958 s 20] 10 years [Crimes Act 1958 s 20] 8 months 4. Making threats to kill [Crimes Act 1958 s 20] 10 years [Crimes Act 1958 s 20] 8 months 4 months 5. Common law assault [Contrary to Common Law] 5 years [Crimes Act 1958 s 320] 6 months Alt. 9A Contravention of a family violence intervention order [Family Violence Protection Act 2008 s 123(2)] 2 years or 240 penalty unit fine [Family Violence Protection Act 2008 s 123(2)] 2 months Alt. 9B Contravention of a family violence intervention order [Family Violence Protection Act 2008 s 123(2)] 2 years or 240 penalty…
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- AGLC
- Timothy Woods v The Queen [2016] VSCA 293
- Case
- [2016] VSCA 293
- Decision Date
CaseChat Overview and Summary
The court identified several key legal issues that required resolution. The primary focus was on whether the cumulative sentence imposed by the trial judge was manifestly excessive. This involved assessing the severity of each offence and the appropriateness of the overall sentence. Additionally, the court needed to determine whether the sentence constituted 'double punishment', where a single act was punished twice under different legal provisions. Another issue was whether the sentence was proportionate to the crimes committed, considering the totality of the offences and the principles of sentencing.
In its reasoning, the court examined each ground of appeal proposed by Woods. The court found that the overall sentence was not manifestly excessive, as it was within the range that could be considered appropriate for the combination of offences. However, the court did find merit in Woods' contention that his sentence involved 'double punishment' for the same act. This was because one of the charges, making threats to kill, was based on the same factual matrix as the common law assault charges. The court acknowledged this as an error in the sentencing process. Despite this error, the court determined that it did not warrant a substantial miscarriage of justice, and therefore, leave to appeal was not granted on that ground. The court ultimately granted leave to appeal solely on the ground concerning 'double punishment', while rejecting the other grounds for appeal.
The final orders of the court were that leave to appeal was granted in respect of the proposed ground 4 concerning 'double punishment'. The court did not grant leave to appeal on any other grounds. This decision allows Woods to challenge the 'double punishment' aspect of his sentence on appeal, while the remainder of his sentence stands as determined by the trial judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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